A recent decision issued by New York’s Appellate Division (New York’s intermediate appellate court) might make one question the enforceability of post-employment restrictive covenants; but the law is clear that reasonable non-compete agreements will be enforced to the extent necessary to protect an employer’s legitimate business interests. There is, however, no question that consultation with counsel can help avoid potential harm from failing to adequately implement protocols to ensure the likelihood of enforcement.

New York City’s Fair Chance Act alters provisions of the City’s Human Rights Law to prohibit employers from inquiring about a candidate’s criminal record until after they have made a conditional offer of employment. The new law, however, provides exemptions for public and private employers who are required by law to conduct criminal background checks and for several City agencies.

The popularity of New York’s Commercial Division has proved to be its greatest challenge, with caseloads increasing 11 percent statewide between 2008 and 2014, and the number of motions filed increasing 85 percent over the same period. The Commercial Division Advisory Council, which advises on all matters pertaining to the Commercial Division, has put forth a series of reforms to restore its efficacy.

New York’s Department of Environmental Conservation is prepared to move forward on banning high-volume hydraulic fracturing based on the New York State Department of Health’s long-awaited report, which concluded that: “Until the science provides sufficient information to determine the level of risk to public health … and whether the risks can be adequately managed, high-volume hydraulic fracturing should not proceed in New York State.”

Employers and insurers need to be in compliance with the 2014 ACA mandates and understand how compliance with the final regulations just issued by the U.S. Department of the Treasury regarding the Employer Shared Responsibility provisions can best be ensured. Many are overwhelmed by the volume and impact of ACA regulations and other issues relative to adherence to the ACA requirements.

Life insurers currently subject to unclaimed property audits and market conduct investigations should point to the decisions and reasoning in two recent cases as justification for their position that they acted properly in paying death claims based on the language in their insurance contract and general insurance law principles.

Navigators provide in-person assistance to individuals, families and small businesses interested in applying for health insurance coverage through the New York Marketplace. At present, New York has nearly 500 trained and federally regulated Navigators dispersed throughout the state's 62 counties, with 48 different languages represented.

Penn State followed the ACA requirements and, so it believed, implemented an effective tool to fight health care inflation. But it lost the public relations battle as opponents of the university’s wellness program claimed that certain aspects of the program violated a number of privacy and civil rights laws.

Evaluating Employer Insurance Coverages to Defend against Claimed Violations of the Affordable Care ActEmployers should review their professional lines insurance policies along with outside benefits consultants and attorneys to determine whether additional or different coverage may be appropriate to guard against the new ACA risks. Additionally, employers should become educated as to any new insurance products that may be available or in development to address ACA liabilities.

The new guidance is intended as a resource for law enforcement, covered entities, business associates and others who encounter situations where medical records or other PHI is involved. Covered parties should be aware that an in-depth analysis of state law is necessary to fully understand the related privacy obligations.

The Omnibus Rule broadens the scope of who is a “business associate,” extending coverage of the HIPAA Rules to entities not previously covered and imposing direct liability on business associates. Businesses with any connection to protected health information need to determine if they are considered a business associate under the new definition, and, if so, that they take steps to comply with their HIPAA obligations.

Insurers responding to requests for information concerning cybersecurity from the New York Department of Financial Services may benefit from reviewing materials developed in 2002 in response to Regulation 173. In addition, insurers must implement a comprehensive written information security program and adjust it as changes in technology and other specified circumstances warrant.

New York State currently has a moratorium on large-scale hydrofracking while awaiting the results of various reviews of the technique. Under cover of the moratorium and several delays in health and environmental analysis results, more than 150 municipalities in the state have passed bans or moratoriums on the hydrofracking process.

Insurers writing “fixed indemnity” insurance in New York must be aware not only of the new federal standard but also the position of the New York Department of Financial Services’ regarding this type of insurance.

Changes to the NAIC Insurance Holding Company System Regulatory Act and Model Regulation seek to increase regulatory oversight and examination of insurer groups and to assess overall “enterprise risk.” It is expected that states seeking accreditation by the National Association of Insurance Commissioners must have enacted either the Model Act or a “substantially similar” version of it, such as New York’s proposed third amendment.

The regulatory settlement agreement announced by the Florida Office of Insurance Regulation on September 4, 2012, involving Allianz Life Insurance Company of North America reemphasizes the need for insurers to be diligent about compliance with state regulations concerning annuity suitability and the use of senior certifications.

Effective September 12, 2012, the National Association of Insurance Commissioners has amended Actuarial Guideline 38 in an effort to address reserving deficiencies in universal life products that employ secondary guarantees.

The NAIC amended its Annuity Disclosure Model Regulation last fall and it is anticipated that states will begin to propose legislation to adopt these amendments in their upcoming legislative sessions. It is important for insurers to understand these new disclosure requirements before states begin to enact new laws.

The New York Department of Financial Services is seeking information from New York domestic life insurance companies concerning their use, and use by other companies within their holding company system, of affiliated captives or off-shore entities for reinsurance purposes.

Effective immediately, New York Insurance Regulation 200 requires that within 150 days of March 14, 2012, New York domestic and foreign life insurers authorized in New York must implement new compliance procedures regarding unclaimed benefits.

The New York State Department of Financial Services is again implementing an Insurer Climate Risk Disclosure Survey. As announced in a letter from the DFS dated March 2, 2012, the surveys are intended to be submitted on an insurer group basis. In New York, survey responses filed with the DFS will be made available to the public through a link on the DFS website.

Under Circular Letter 14 issued by New York’s Department of Financial Services, all domestic insurers will be required to submit to substantiation and validation of key components of their ERM function during a periodic statutory examination, a stand-alone examination or a market conduct examination.

Wilson Elser is taking the lead in addressing unfair and unsubstantiated low scores for our restaurant clients in New York City. We are helping to define violations that could lead to citations and we are monitoring development of the rules and regulations that will surely prove costly for foodservice providers of all types.

The life settlement market has been a focus of attention in the life insurance industry over the last several years. A "life settlement" generally occurs when the owner of a life insurance policy sells the policy to a third party in exchange for a lump sum payment – the life insurance policy typically remains in force and the death benefit is paid to the beneficiary named by the new third-party owner.

A recent ruling by the New York Supreme Court, Albany County, in Held v. State of New York Workers' Compensation Board regarding Group Self-Insured Workers' Compensation Trusts is a decision that all providers of workers' compensation insurance in New York should pay special attention to. In particular, the court addresses important issues of liability, constitutionality, and relatedness in connection to Group Self-Insured Trusts.

New York Insurance Regulation 194 ("Regulation 194"), which will require insurance producers to disclose certain information concerning the compensation they receive for placing business, will take effect on January 1, 2011. While attempts are being made to challenge this regulation, these efforts may prove unsuccessful and/or the regulation may well go into effect before the matter is finally resolved.

Wilson Elser

More than 800 attorneys strong, Wilson Elser serves clients of all sizes, across multiple industries and around the world. Wilson Elser has 37 strategically located offices in the United States and one in London. It is also a founding member of Legalign Global, a close alliance of four of the world’s leading insurance law firms, created to assist companies doing business internationally. This depth and scale has made it one of the nation’s most influential law firms, ranked in the Am Law 200 and 53rd in The National Law Journal’s NLJ 500.